• Show Notes
  • Transcript

On this episode of the United Security podcast, Lisa Monaco and Ken Wainstein discuss domestic terrorism — the most urgent threats, the relevance of the “terrorist” designation, and whether or not Congress should enact legislation to make domestic terrorism a federal crime. 

They also break down the significance of the decision by Director of National Intelligence John Ratcliffe to cancel in-person congressional briefings on election security just months away from Election Day. 

RNC: 

  • Zach Montague, “What Is the Hatch Act? Is Trump Violating It at the R.N.C.?” New York Times, 8/26/2020

ELECTION BRIEFINGS: 

  • ODNI Director Ratcliffe’s Letter to Congress, CNN, 8/29/2020
  • “Dems outraged as Trump administration scales back election security briefings,” Politico, 8/29/2020
  • “Trump claims leaks are to blame for DNI decision,” CNN, 8/29/2020
  • Tal Axelrod, “Pelosi, Schiff pan director of national intelligence for canceling election security briefings,” The Hill, 8/29/2020
  • “DHS withheld July intelligence bulletin calling out Russian attack on Biden’s mental health,” ABC News, 9/2/2020
  • “History,” DNI.gov 
  • “DNI Clapper Provides Series of Threat Assessments on Capitol Hill,” DNI.gov, 2/29/2016
  • “Background to “Assessing Russian Activities and Intentions in Recent US Elections”: The Analytic Process and Cyber Incident Attribution,” DNI.gov, 1/6/2017
  • Marty Johnson, “House intelligence briefing on worldwide threat assessment delayed,” The Hill, 2/8/2020

DOMESTIC TERRORISM: 

  • Statutory definitions of terrorism, 18 U.S.C. §2331, Gov.Info
  • Nicholas Bogel-Burroughs and Sandra E. Garcia, “What is Antifa, the movement Trump wants to declare a terrorist group?” New York Times, 6/2/2020
  • Trump Tweet on Antifa, Twitter, 5/31/2020
  • “AG Barr: Antifa is a ‘new form of urban guerilla warfare,’” Fox News, 8/9/2020
  • Jane Coaston, “The ‘boogaloo’ ‘movement’ explained,” Vox, 6/8/2020
  • Tim Elfrink, “‘Great going’: Trump praises right-wing activist Laura Loomer after her Florida GOP primary win,” Washington Post, 8/19/2020
  • Mary McCord, “It’s Time for Congress to Make Domestic Terrorism a Federal Crime,” Lawfare, 12/5/2018
  • Kevin Roose, “What is QAnon, the viral pro-Trump conspiracy theory?” New York Times, 8/20/2020
  • Kevin Liptak, “Trump embraces QAnon conspiracy because ‘they like me,’” CNN, 8/19/2020
  • “Former DHS Official: Trump Pouring ‘Fuel on the Fire’ Of Domestic Extremism,” NPR Morning Edition, 9/2/2020
  • Christopher Paul Hasson’s Motion for Detention Pending Trial, U.S. District Court of Maryland, 2/19/2019
  • “MS-13 in the Americas,” Justice.gov, 2/16/2018
  • National Security Council, “Strategy to Combat Transnational Organized Crime,” Obama White House Archives, 6/25/2011
  • MS-13 leader Melgar Diaz indictment on terrorism charges, U.S. District Court for the Eastern District of Virginia, 5/5/2020
  • Douglas O. Linder, “The Oklahoma City Bombing & The Trial of Timothy McVeigh,” University of Missouri, 11/17/2007
  • “Schiff Introduces Legislation to Create a Federal Domestic Terrorism Crime,” Schiff.House.Gov, 08/19/2019

ALF/ELF: 

  • Testimony of Dale L. Watson, former Executive Assistant Director of the FBI’s Counterintelligence Division, before the Senate Select Committee on Intelligence, FBI Archives, 2/6/2002
  • Attorney General Alberto Gonzales and FBI Director Robert Mueller announcing indictments against ELF members, C-SPAN, 1/20/2006

UNSUNG HEROS: 

  • “About the National Security Division,” Justice.gov

Lisa Monaco:                From CAFE, this is United Security. I’m Lisa Monaco.

Ken Wainstein:             And I’m Ken Wainstein.

Lisa Monaco:                Hey, good morning, Ken.

Ken Wainstein:             Good morning. How are you?

Lisa Monaco:                I’m great. How are you doing?

Ken Wainstein:             I’m doing fine.

Lisa Monaco:                What have you been doing since we last chatted?

Ken Wainstein:             Well, I’m actually visiting in-laws down in Alabama where it’s about 125 degrees.

Lisa Monaco:                Nice.

Ken Wainstein:             Enjoying it though. And also, sort of enjoying the aftermath of the two conventions. I think on the last episode, we were in the middle of the Democratic Convention, maybe just after it, and now we’re on the heels of the RNC, which was quite a spectacle. What do you think of it?

Lisa Monaco:                I’m not sure that enjoying the aftermath is a term that I would use, but, boy, seeing the sights of the White House used as a backdrop and as the stage, literally the stage, for a political convention, frankly, is never something I thought I would see. But-

Ken Wainstein:             Yeah. Why didn’t we think of that? What a great idea? You want to get to the White House? You use the White House. It’s brilliant.

Lisa Monaco:                Yeah. I’ve looked, as I know you have, since we both have the privilege of working in the White House and on the White House grounds, I was privileged to go to many events on the south lawn, in the east room, in so many of the amazing spaces and public spaces that the White House has, but never have seen it used for a partisan political event like that. It’s just we’re in a different world.

Ken Wainstein:             Yeah. Actually, I think you’ve identified something that’s kind of gotten lost in the discussion. Everybody talks about the Hatch Act and whether it violated rules for the Republican campaign to use the White House. But I think there’s a sort of additional, almost more important element to this, which is what you’re talking about. There’s a certain majesty and dignity to the White House. It really is the people’s house and in my time there, everybody who was there walked around somewhat in awe and in respect of the White House, and what it represented to the country. And the idea that it’s used for something that is just for part of the country, or part of the political spectrum runs completely counter to that whole notion.

Lisa Monaco:                I agree with that. But of course, we didn’t come together today to talk about the RNC, although it definitely is figured prominently. Since our last recording, we’ve got a lot to discuss today, Ken.

Ken Wainstein:             Let’s start with the announcement by the Director of National Intelligence, John Ratcliffe, that they were going to be changing tack as it came to briefing Congress about the threat to the election, which by the way, is right around the corner. And this is pretty noteworthy that on August 29th, however many days that is before the election, he announced and then the President went ahead and confirmed and supported that announcement, that they would not be briefing Congress in person about what they were seeing regarding the election threat.

Lisa Monaco:                Now I noticed that they did say that the Department of Homeland Security and the FBI will continue to provide oral briefings. But the DNI, Ratcliffe is saying he and his office will no longer submit to or engage in in-person briefings. And so you may think, “Well, alright, what does all this mean? What does it matter?” And my reaction, all this was, first, the Director of National Intelligence was created did you know, after 911, as part of a series of reforms, to be the coordinator of the intelligence community of the 16 or 17 different agencies who own make up the intelligence community. And the job of the DNI is to integrate all the different views and different expertise across the intelligence community, and present, both to policymakers at the White House sitting around the situation room table, as you and I did, and to Congress, what’s called the community view.

Now, the rationale here, the asserted rationale is evidently that there have been leaks from past briefings and therefore, the DNI says, well, we’re not going to engage in in-person briefings, we’ll still provide you written product. I have to say, that was kind of a head scratcher for me. Because I think if somebody wants to leak something, they can leak a written information from a written product, just like they can leak from an oral briefing. So that was not very compelling. It didn’t make a whole lot of sense to me. What did you think?

Ken Wainstein:             Yeah, I felt the same way. It’s almost easier to leak a written document in some ways than a script. And it’s easily conveyed to somebody else. I didn’t buy that rationale. And the concern, of course, is that the administration is reluctant to explain what they see because they’re worried that that’s going to be used against them in the campaign. In other words, for instance, if it is broadly broadcast, that the Russians are interfering in the election or are trying to interfere in the campaign, and that they are trying to help Trump, which, of course is the substance of the announcement that we discussed in our last episode. Where Bill Evanina came out with a little bit more expanded announcement about what they’re seeing in which he gave still relatively sparse details about interference efforts by China, Russia and Iran and Russia, they acknowledged was seeking to support Trump.

And the concern is that reluctance to brief is not a reluctance to run the risk of leaks, but rather a reluctance to share details about what the Russians are doing. And probably what the Russians are doing on steroids compared to what’s being done by China and Iran.

And the American people would then see and recognize that some of these influence efforts, some of the strains of narrative that are out in the press, might well be sourced to Russia, and should be looked at with a [inaudible] eye. So I think they might be concerned about the possibility that the intelligence will be used exactly as we want the intelligence to be used by the American people to be more skeptical of some of the claims we’re seeing out there.

Lisa Monaco:                Right. And look, I think people, justifiably, I think would have probably three questions on this whole story. One is, should we care? Two is, does it really matter? And three, how really outside the norm is all this? And my answers to those three questions are, yes, yes, and substantially. So, yes, it is something we should care about. Yes, I think it matters very, very much, and it is substantially outside the norm. And we should care about this because I think it puts the intelligence community yet again, kind of in the political crosshairs. We’re having this discussion, because there does seem to be this kind of political taint to it.

And I think in-person briefings really do matter because they’re a critical part of the oversight that Congress has over the intelligence community.

Ken Wainstein:             Yeah, and I think you’re right about it being outside the norm. And I think there’s another sort of more inside baseball impact here, which is the Director of National Intelligence, as you just said, that office in that position was instituted to be the quarterback of the intelligence community, to be the voice of the community.

Lisa Monaco:                I knew there was a sport’s metaphor to be heard here somewhere.

Ken Wainstein:             Yeah. I’m anxious for football to start again. Let’s see if it does.

Lisa Monaco:                You’re not alone.

Ken Wainstein:             But the DNI was designed to do that. And in fact, Jim Clapper, the DNI, the Obama administration, played that role, when the intelligence community’s assessment of what had happened in 2016, was rolled out in the beginning of January and briefed to the administration into Congress. Here if you have the DNI playing a role in the background on … but really probably, arguably, is the intelligence issue of the moment. I wonder what that’s going to do with for the long term for the potency of the DNI position.

Lisa Monaco:                Yeah. And I think the last thing I’d say on this Ken is, I think in-person briefings really do matter. You and I both have spent time sitting at those tables, before the intelligence committees before the Judiciary Committee, frankly, before a whole bunch of different committees. And it is a very different thing to be subjected to probing questioning or any questioning on what you’re putting forth, and engaging in a back and forth and having to answer maybe sometimes uncomfortable questions.

Look, it wasn’t always easy, for sure, but there’s a real difference in having somebody read something that’s been carefully crafted and put on the page. And maybe it’s susceptible to a lot of different nuanced interpretations, and actually having to defend that and answer questions that it raises. And that’s the purpose of the in-person briefing. And I think it’s critical to oversight, which in turn is critical to having trust in the activities of our intelligence community.

Ken Wainstein:             Yeah. And to put some icing on that it’s critical to accountability, because as an official going up to Congress to breathe, when you have a member leaning over to the podium, wagging his or her finger at you and asking a question that you can’t answer, or that you cannot give a sufficient answer, or one that satisfies him or her. And that member says, “You get back to me on this issue.” You have to get back to them.

Lisa Monaco:                Right. I don’t know about you, but I had a lot of finger wagging at me.

Ken Wainstein:             Oh my gosh.

Lisa Monaco:                And we’ve got more breaking news, which is a story that just came out in the last day or two, which is that the Department of Homeland Security is sitting on or has squelched from releasing a report from its own internal intelligence and analysis unit about an assessment of Russian efforts to put out disinformation, and false information about Joe Biden. And so there is a report that the DHS secretary, the Acting Secretary Chad Wolf, stopped that from going out.

Ken Wainstein:             The concern of here is that Russia is putting out misinformation and they’re trying to focus on things that they think might get traction among people who are considering them to vote for. And here you have this intelligence report saying that the Russians are specifically putting out misinformation about Joe Biden’s health and therefore his suitability as a candidate for president. That seems like it’s pretty important news, and it’s pretty important for the American voting public to know that, and the report was withdrawn. And the rationale for withdrawing it was apparently it was not up to snuff in terms of its written quality. And the Secretary recognized that the writing was not up snuff and pulled it back.

Lisa Monaco:                Well, that’s the asserted purpose. So two things to underscore here. And you made a very good point, Ken which is to say the report, reportedly was about how the Russians were putting out misinformation about asserting about Joe Biden’s health. And it’s important that that information, get out there, this intelligence assessment get out there, so that the American people when they see such misinformation can say, “Ah, I get it. This maybe it is an effort by the Russians to influence what I’m thinking in relation to the election.” That is the purpose of putting out these types of intelligence assessments and alerts and letting the American people know the nature of the disinformation campaigns that Russia wages.

And then the reporting is here that the Acting Secretary of Homeland Security pulled this back kind of stuck in a drawer. But he has said it’s because it was poorly written. Well, I don’t know about you, Ken, but in my experience the Cabinet Secretary level does not act as a copy editor.

Ken Wainstein:             I thought that was one of the criteria for vetting Cabinet Secretary positions. Good with the red pen. So we’ll see if it sees the light of day. The response in the last hours, I think has been that DHS will be putting something out. We’ll see if it gets out.

Okay, why don’t we shift gears and start looking at the issue of domestic terrorism. And it’s important to talk about that because the word terrorism and terrorist has an important meeting both rhetorically and politically. But also lately, we’ve heard a good bit of talk recently about different groups and whether these groups which might be involved in some of the more violent activities and protests that we’re seeing around the country, whether these groups are terrorist groups or not.

And I thought I’d start just with an understanding of what terrorism means. And under the law, there’s a definition for international terrorism and definition for domestic terrorism. But terrorism basically, is this, it comprises acts which are dangerous to human life that are against the law. And those acts are appeared to be intended to intimidate or coerce a civilian population to influence the policy of the government through intimidation or coercion or violence. Or to affect the conduct of the government, what the government does, by engaging in mass destruction and assassination, kidnapping, et cetera. And so that is the general nature of terrorism. It’s not just illegal activity, it’s illegal activity with that kind of purpose.

And just to lay out the example, Timothy McVeigh, who blew up the Federal Building in Oklahoma, he was upset about what the government done in Waco and Ruby Ridge and overreaching by the federal government. He saw the government as oppressive, he had problems with the US foreign policy, and he wanted to trigger an uprising against the federal government. And that’s why he engaged in that brutal attack on innocent people. That seems like a paradigmatic example of a terrorist act. And the question is whether some of these groups that we’re seeing now and that we’re hearing about now and in the news are terrorist groups or not terrorist groups. And one of the ones that we’ve discussed recently, we’ve heard a lot about in the press is the group called Antifa. And I think just recently in May president tweeted that the US would be designating Antifa as a terrorist organization. So let me tee that up. What do you make of that, Lisa?

Lisa Monaco:                Yeah. So, as you said, the President said he’s going to be designating Antifa as a terrorist organization. I think the kind of force of that was basically a simply a Twitter post because there’s no actual mechanism in our law to designate a domestic group, a terror organization. So that’s I think the first point. The Attorney General Barr has referred to Antifa as a new form of, “guerrilla warfare.” And he described it as insinuating itself into demonstrations and provoking violence. He also in a interview that I read, he used kind of a weird fish metaphor referring to how Mao Zedong described terrorism-

Bill Barr:                       It’s a new form of urban guerrilla warfare. Mao used to speak Mao Zedong, Mao used to speak about the gorilla being like fish, swimming in the ocean, the way the gorilla moves through the people. The gorilla ides out among the people as a fish in the ocean.

Lisa Monaco:                That was a little bit strange, but look, the bottom line here is the experts who have really looked at this, and tried to examine Antifa have assessed that it’s a loosely affiliated group of far left anti-fascism activists. It’s not an organization with a clear structure or defined membership. And it’s more of a movement with a shared philosophy and tactics. And the philosophy is one of anti-fascism and they campaign against what they define as authoritarianism or xenophobia or racism. And it’s really gained a lot of attention after the Unite the Right rally in Charlottesville, Virginia in 2017.

So it’s on the one hand, I think it’s hard to think about it as the same type of organizations that we think about when we think about designating terrorism organizations like Al Qaeda or ISIS, which have leadership structures. That our intelligence community has identified and can assign. You and I know because we spent many, many years looking at intelligence and working across the intelligence community to understand the leadership structure of Al Qaeda, who are the operations commanders, who are the training commanders, who are the plotters and the planners, we don’t have that when we are talking about the types of groups that you just referenced. So I think it poses a real challenge. The type of rhetoric that we’re seeing coming out of President Trump and Attorney General Barr it feels to me like it’s trying to have rhetorical force, but it is less rooted in actually meeting a kind of legal definition of a terrorist group.

I think the last thing I’d say is, I think that the … we ought to be labeling and assigning, clear labels to actions that happen to behavior that happens. And we got to call that what it is.

Ken Wainstein:             Yeah. And I think you, you referenced an interesting point you talked about Attorney General Barr quoting Mao Zedong, which is not a usual source of quotes for an official of the United States. But his point was a valid one in the sense that, obviously the vast majority that people go into protests, I think, went out to protest to make a point, which is in line with the American tradition of expressing oneself freely. There were some number of people who engaged in violence, and who did use the protests as an opportunity to engage in violence, whether that was looting or physical violence against the police, what have you.

And then the question is, is that act to your point is that act, a terrorist act, and if it’s a terrorist act, is it being done on behalf of a definable group. And that’s a tough one, it’s tough to say that there was one group that was organized, specifically, or organized itself specifically to engage in violence in order to make a public statement.

Lisa Monaco:                Right. To influence, to again, meet the definition of terrorism that you outlined, I think very well Ken, at the start, to engage in that violence to intimidate a civilian population and to influence the policy of the government. Importantly, through mass destruction, kidnapping, and assassination. That’s the definition that our laws assign to terrorist acts.

So I think we just have to be very precise. What caught my eye also Ken recently is also in the breaking news category. A former Trump official, this was the woman by the name of Elizabeth Newman, who was the assistant secretary within the department of Homeland Security. She was the assistant secretary for counter-terrorism and Threat Prevention at DHS. She made news in the last week by saying that the White House failed to take domestic extremism and specifically what she characterized as right wing extremism. They fail to take that seriously. And she has said, she told NPR quite specifically with regard to Antifa, she told NPR, the threat of and this is a quote, “The threat of domestic terrorism is not from an Antifa. It is from these right wing movements.”

Elizabeth Newma…:      Someone associated with peaceful protests is the Antifa. And yet, if you look at the arrests that have occurred in the protests of the summer, it’s the Boogaloo Movement, or it’s an association with QAnon. It’s the right side of the spectrum. It is not Antifa.

Lisa Monaco:                So it’s made all the more complicated by the fact that now we’re putting these assessments. It feels like also through a little bit of a partisan lens and I think that’s unfortunate, too.

Ken Wainstein:             Right. And there are some of these groups out there who are to put simplistically sort of on the right side of the political spectrum.

Lisa Monaco:                Right. Yeah. And we should talk about those right, that’s Boogaloo and QAnon, those come to mind.

Ken Wainstein:             Yeah, exactly. So Boogaloo is this movement that’s come to the fore recently, in particular, since the Black Lives Matter movement has gotten traction over the last few months since the murder of George Floyd. And it’s this group, loosely affiliated people who’ve agree with gun ownership and carrying guns openly, and who advocate generally for some uprising against the overreaching federal government. And these folks have shown up at the various protests around the country and oftentimes carrying firearms, and their idea purportedly is to try to foment a revolution to break down what they see as a repressive and oppressive federal government. That’s Boogaloo.

You also have QAnon, which we’ve heard a lot about recently. In part because the President made some statements that seemed to cozy up to QAnon a little bit. QAnon is definitionally, it’s a movement. Once again, it seems like a fringe phenomenon. It’s a specifically pro-Trump conspiracy theory. That puts out notions that the President was actually, the President Trump specifically was asked by a group of military generals to come in and save the country from a criminal conspiracy of people on the left, who are Satan worshiping and engage in child sex trafficking and the like. And the people who were identified as being responsible for that are Hillary Clinton, Barack Obama, George Soros and the like. And according to this QAnon conspiracy theory, Trump has been brought in specifically to do battle with these evil forces, and it’s up to them to spread the word and solicit support for the President’s efforts.

And it’s actually catching. Down in Georgia just recently, a woman who is a professed QAnon believer just won the primary in a very conservative district for Congress. And so presumably that person is going to be elected on election day. And it’s going to be in the US Congress professing this QAnon conspiracy theory.

Lisa Monaco:                Yeah. And President Trump, I think is called her a rising star right in the Republican Party.

Ken Wainstein:             Right. And back to what I said at the outset, when asked about QAnon, and when given the opportunity to say there are a bunch of crackpots and shouldn’t be listened to, the President actually sort of said, “Well, I know they’re gaining in popularity, and I know they like me very much,” which he appreciates. And then he said that these are people-

Donald Trump:              … that don’t like seeing what’s going on in places like Portland, in places like Chicago and New York and other cities and states. I’ve heard these are people that love our country and they just don’t like seeing it.

Lisa Monaco:                Look, to say it’s fringes is I think an understatement. With the definition that you just rattled off about QAnon is really just bizarre. You see kind of how the organization you and I used to work for the FBI, this poses a real challenge for how to kind of think about these organizations. So the FBI had put out an intelligence bulletin where they did classify QAnon, as a fringe political entity of sorts. And it’s how do you inform the public about and your partners in state and local law enforcement and at Homeland Security kind of fusion centers. These are the state organizations with Homeland Security responsibility. How do you talk about these entities and really have a nomenclature about how to think about them when they really do involve really such kind of bizarre theories, and conspiracy theories. And I think it’s a real challenge for our former agency.

Ken Wainstein:             Yeah, it is a challenge. And look, it’s a challenge to look at any of these groups that are engaged and anything that’s either potential violence or real stone cold violence and decide whether they should be considered terrorists or a terrorist group or not. And another example of that issue is with MS-13, which is this gang that was recently charged with terrorist activities, and that those charges were announced by the president and by Attorney General Barr personally. And it was an overarching indictment of a number of the leaders of that group and they very specifically called out MS-13 as a terrorist organization.

And just for background, MS-13 is a group that has its roots back in the 1980s. It came up from Central America. It’s now on several continents. Has 50,000 to 70,000 members. And it’s not really like a traditional mafia family or organized crime organization that’s focused on generating revenue. It’s more like a social organization that uses violence as the lifeblood of the organization, members use violence, sometimes gratuitous violence against innocent people, just for purposes of making their bones, establishing themselves as members, cementing loyalty to the group. And as a result, it is a very vicious organization that has caused untold misery and death around the world. And it’s a real problem.

So certainly these people deserve to be charged. The question though, is whether they truly do satisfy the elements of a terrorist organization.

Lisa Monaco:                Yeah, this really struck me, this indictment that came down in July, you and I know from our past as prosecutors as federal prosecutors, MS-13 has been the focus of investigators and prosecutors in a big law enforcement focus for many, many years. I can remember substantial investigations into MS-13 activity when I was an assistant US Attorney. But this indictment that was announced in July the reference to the first time that the Justice Department has charged MS-13 as terrorists. Now the question is, what does that mean, since we’ve already said that there is no such thing as a domestic terrorism statute, at least not yet.

So think about the McVeigh case that you gave, quintessential definition of a terrorist act on US soil is an act of domestic terrorism. But the charges there were for murder and use of a weapon of mass destruction, this massive car bomb or a bomb bomb that was in a U-Haul truck. And similarly, the Boston Marathon bombers. The Boston Marathon bomber was charged with murder and with Use of a weapon of mass destruction. So not charged with domestic terrorism. There is no such charge in our criminal laws yet.

But MS-13, and the announcement that came in July, was really for conspiracy to use the use the proceeds of cocaine sales, and to oversee murders and kidnapping and gun and drug smuggling, but also for engaging in terrorism transcending national boundaries. So it had that international link.

So you really do see there’s no domestic terrorism charge here. So you wonder, why did they take that extra step to add this kind of terrorism label to MS-13, when they’ve been prosecuting MS-13 gang members using the conspiracy statutes and other statutes on the books for years? What do you what do you make of that Ken?

Ken Wainstein:             Well, it seems like a stretch to me because if you just look back at the life of MS-13. They really don’t take political stances. And so therefore useful to wonder how the federal government is going to be able to prove up that the purposes behind the activities that are violent activities that are charged in the indictment, were to, let’s say, influence a government or course american people, would be  interesting to see how they can prove that up.

Lisa Monaco:                Yeah, I think that I have a theory here, which is they’re kind of leaning on something that the Obama administration did back in 2011, which was issue an executive order about significant transnational criminal organizations. So these are criminal organizations that transcend and work across different countries, whether it’s in their drug or gun or human smuggling operations, you name it. And President Obama did issue an executive order discussing these types of transnational criminal organizations and referred to MS-13 in that context. And he went so far as to say that these types of significant transnational criminal organizations threaten the stability of international political and economic systems.

Ken Wainstein:             But that there by qualified as a terrorist organization.

Lisa Monaco:                Right. So it really begs the question, why are they now the all of a sudden assigning this terrorism label. And I think you can’t avoid the implication here, that one, it’s to try and get a more of a rhetorical bounce here, because everyone sits up a little bit straighter, pays a little bit more attention when you assign the terrorism label. And it does feel to be kind of in the same vein as the kind of immigration focus and the us in them rhetoric that has been part and parcel of the administration’s focus on immigration. There’s been lots have fairly baseless claims made about immigrants coming across the southern border, and there being ties to terrorist organizations. Those have actually not been borne out in intelligence. And there’s been precious little evidence for those claims. But it does seem intended to kind of merge the immigration debate with the very charged language of terrorism. What do you think?

Ken Wainstein:             I agree with you. Immigration is a huge issue. The President has made it a big issue since you campaign before the 2016 election. That’s a primary concern of a lot of his supporters. And as you say, one of the themes of his rhetoric has been that there are terrorists flooding over the southern border, and that there are MS-13 members coming in with the caravans and the like.

And so I think that there’s political benefit to bring this indictment at this time leading up to the election to appeal to those people who are very concerned about immigration. And we’ve been talking about the foreign domestic distinction between organizations and how they’re classified. Just to keep in mind, on the foreign side, when we’re talking about foreign organizations, there’s a whole structure in place by which the federal government can designate for mobilization as a foreign terrorist organization, FTO. The State Department maintains a list. And if a group like Al Qaeda or ISIS is put on that list, then there are certain ramifications. And there are sanctions applied, et cetera.

And one of the things that happens is if somebody were to provide material support to those organizations, or one of those organizations, that person will have violated material support to terrorism statute.

Lisa Monaco:                Oh, yeah, I bet you’re going to say this Ken, that material support can be anything from money to weapons to providing yourself.

Ken Wainstein:             Right. So mere membership.

Lisa Monaco:                Yeah. Exactly, exactly.

Ken Wainstein:             Right. So in other words, if you’re a member, you go over and join ISIS as a member, whether you explode a bomb, or you actually take violent action against anybody, you violate a law by providing material support, ie, yourself to that group. That passes constitutional muster when it comes to foreign organizations. The concern, of course, is on the domestic side, where you have the right to free speech, right of association, whether the government could classify a domestic organization as terrorists, and thereby making a violation of federal law for somebody to join that, become a member of that organization without actually engaging in any terrorist activity.

Lisa Monaco:                No, it’s such a good point. And there’s real first amendment hurdles to that. And that I think is a good transition to the question that now has regularly come up, which is should we have a domestic terrorism statute? We described how Timothy McVeigh and Boston Marathon bomber, they weren’t charged with domestic terrorism, but other violations of criminal law. So, what do you think on this score? Do prosecutors have enough tools already at their disposal to bring charges to address what we all would agree, for instance, the Oklahoma City bombing is an act of domestic terrorism. Do you think we need a new law?

Ken Wainstein:             There are a number of arguments for such law and one of them is rhetorical and is more for optical important but optical benefit, which is like we have these statutes for foreign terrorist organizations, many of them target Muslim organizations, ISIS, Al Qaeda and the like. And we don’t have a comparable structure for domestic organizations, many of which might be white nationalist type of groups. And is that disparate treatment? And some commentators have said, “Look, there’s real value in having a structure imposed on domestic groups for that very purpose so that Muslim communities don’t feel like they’re being unfairly singled out for harsh legal treatment, and focus on the white nationalist side who might be just as violent, just as dangerous, do not get that treatment.”

That’s one of the arguments for why it’s useful to have a statute as a practical matter, I think you’ve made the point quite well, that prosecutors are resourceful. There are lots of statutes on the books. And if somebody is actually engaging in violence, they can be prosecuted either for having engaged in that violence or conspiracy to engage in violence if the plot is revealed before the violence actually happens, or aiding and abetting violent acts.

And so it’s hard to think of any terrorism type case that have happened on our soil, and we’ve been unable to prosecute them effectively with the statutes that are on the books.

Lisa Monaco:                That said, I think that’s right. But I think there’s two questions. Do you have a charge that you can bring, that can address the activity and deter that individual and do justice? And achieve the objectives that you’re seeking, which is to bring that individual to justice, to imprison them to keep them from repeating that activity? And yes, there’s many laws on the books that I think get out a lot of this activity. I think it’s a separate question. I actually think there’s something we should look at in terms of whether there is an ability to carefully craft legislation that would allow us to assign some of the same moral opprobrium to acts of terrorism that are motivated by domestic extremism and domestic grievances, that same moral opprobrium that we assign to those motivated by international terror groups or conducted by international terror groups.

Mary McCord, who is our former colleague from both from the US Attorney’s Office in the District of Columbia, and from the National Security Division at the Justice Department, she’s written about this quite extensively, and has called for such a domestic terrorism law, one that is carefully crafted, that would address the First Amendment concerns here. And Adam Schiff, he’s proposed legislation that would create such a statute. And importantly, not classifying new criminal conduct, but rather criminalizing conduct done that is already a crime. But done with an intent to intimidate or coerce a civilian population, as domestic terrorism. I think that’s pretty important.

Ken Wainstein:             Yeah. And Mary makes a very persuasive case. And as you and I have written on this topic in the past, domestic terrorism is an issue that hasn’t gotten the attention that it should. International terrorism of course was all the focus after 911, he killed 3000 of our people, and so you understand properly was our focus. But look, we’ve seen more and more domestic terrorism, whether it’s the various shootings around the country, killings in black churches and the like. And I think this is a time to be leaning forward, both to legislate laws that in practical terms, assist law enforcement to go after people who engage in that kind of activity, but also to send the message as you point out. That we’re going to go as hard against people who kill us white nationalists as we are, for religious zealots who kill us, international terrorists, bent on a Jihad. And I think that’s an important point.

Lisa Monaco:                The other thing, I think Mary points to a very, I think, concrete example, she points to this, of conduct that could be addressed and fill in a gap that she sees that needs filling. And this was this case of a former Coast Guard Lieutenant, man by the name of Christopher Paul Hassan, who was arrested on the last couple years for plotting the murder of notable Democrats and journalists. And he was stockpiling weapons. He was ultimately charged with … for this purpose, and he was ultimately charged with some drug and some minor firearms offenses. But those charges weren’t enough to actually get him detained. The judge noted that they weren’t sufficient, based on the guy’s prior record to actually hold him. Now that ultimately got address by a later judge. But that was a challenge for the prosecutors.

And I think Mary’s point is, if you had a domestic terrorism law, the kind that she has written about on the books, you could say, well, it could be a violation of such a statute to stockpile firearms with the intent of or with the purpose of conducting an attack that meets a domestic terrorism definition. And prosecutors and investigators wouldn’t have to actually wait for the person to take a step towards that action. Now look, that makes some people very uneasy that you’re getting into a dangerous line here. But she does I think do a good job of identifying a specific, kind of fact pattern that such a statute would address.

Ken Wainstein:             Yeah. And Adam Schiff statute, or his bill has gotten the support of a number of important entities. I saw the FBI Business Association came out in support of it. And I think the more we see this violence, particularly right wing domestic violence, I think more momentum will build for some kind of domestic terrorism statute.

Lisa Monaco:                So I think one thing we should point out Ken is because we were talking about this notion of, well, can you designate Antifa for instance, as a terror organization. The type of carefully crafted domestic terrorism legislation that we’ve been talking about, and then I know that Mary McCord and the Adam Schiff legislation contemplates, would not, and I emphasize would not include the ability to designate domestic groups as terror groups like the foreign terror organization designation that the State Department has that you referenced earlier. And that’s, of course, because of the important First Amendment protections that we have. You don’t want the danger of having such a “designation capability” would be that you could develop an enemies list, and one political party’s view of an organization might be different than another.

So I think that’s really important to be clear about the advocates for some of the more well-crafted domestic terror legislation would not include such a designation capability. And then the last thing I’d say is something that is in a shift legislation would require a lot of very clear and transparent reporting by the FBI as to how they are using this power. And I think that’s really important for oversight and accountability.

Ken Wainstein:             This discussion reminds me of a situation that you and I dealt with back in post 911 era when we were really focused on terrorist groups like Al Qaeda that were trying to kill Americans. But at the same time, there came to the fore, two groups that were focused on environmental terrorism, as was called at the time. And those groups are ALF and ELF, the Animal Liberation Front, and the Earth Liberation Front, which are two groups that swore off violence against individuals or against animals. But were focused on causing property damage, to make the point that we need to protect the environment, and that we need to protect animals.

So they did a number of arsons including an arson of a lodge out at Vail in Ski Resort out at Colorado, they undertook violent acts against companies that were using animals in various ways. And there were a lot of incidents over the years, where they caused property damage to the tune of many millions of dollars, but didn’t actually hurt any individuals. The FBI went hard after those cases. I remember Bob Mueller announcing a big indictment involving these kind of “terrorists” and charges were brought against them and they’re branded as terrorists, even though they didn’t actually focus on injuring human beings.

Bob Mueller:                 Today’s indictment marks the culmination of an intensive investigation by the FBI, as well as our partners including ATF and investigation focused on a group of individuals who have committed numerous violent acts in the name of animal rights and environmental causes. But terrorism is terrorism, no matter what the motive. The FBI committed to protecting Americans from crime and terrorism, including acts of domestic terrorism, in the name of animal rights, or the environment.

There is a clear difference, a clear difference between constitutionally protected advocacy, which is the right of all Americans, and violent criminal activity. It is one thing to write concern letters or to hold peaceful demonstrations. It is another thing entirely to construct and use improvised explosives or incendiary devices to harass and intimidate victims by destroying property and to cause millions of dollars in losses by acts or threats of violence.

Ken Wainstein:             Which is just an interesting point. Because once again, it’s a question of classification, both legal designation, which as we pointed out there’s no designation for terrorist groups domestically, but also just classifying a group as a terrorist group. Here, we’ve got these people who are focused on the environment, animal rights are considered terrorists because of the acts they undertake, because they’re taking those acts to influence the way that government addresses environmental and animal rights issues, therefore, it fits the definition of terrorism. Interesting, interesting question that we wrestled with back then. And we’re seeing different permutations of that issue here with the different groups we’ve gone through today.

Lisa Monaco:                You know, Ken, as we’re talking about our former colleague, Mary McCord, and she worked in the National Security Division that you and I both lead. It strikes me that the right candidate for our unsung hero for this week ought to be those prosecutors and intelligence analysts and intelligence professionals that we worked with both in the National Security Division and frankly across both the FBI and other parts of the intelligence community, who have to keep up with these very dynamic, fraught, quite frankly, threats. Whether it’s from election security to the domestic terrorism difficulties that we just were talking about, it’s … boy, it’s a hard job to kind of navigate the nuances and the evolving threat environment. And so I think my hat’s off to the folks who are doing that day in and day out.

Ken Wainstein:             Yeah, I love being personal to prosecutors, because we’re both prosecutors. And we’re both in national security vision. I’m going to feature the prosecutors for a second here. But we’ve talked about the difficulties of fitting the current statutes, to the different types of activity that we’re seeing out there, some of which can be considered criminal. And what you have in the National Security Division is people who become expert in using the current statutes that are on the books to try to bring those statutes to bear in situations that are deserving of criminal prosecution. And also you have people of that division, going to Congress and telling Congress, these are the statutes we need. And here’s why. Or these are statutes that should be reformed or revised, and here’s why. And that happens with regularity. The executive branch weighs in regularly at the level of the experts to tell Congress, “This is why we need these statutes. We’re seeing this threat. We think that threat has not been fully addressed by the statutes we currently have. And we need the following statutes.”

And I’m sure that process is ongoing right now. And I’m sure there was a lot of input from our former colleagues in our Security Division, before Adam Schiff put out his proposed legislation for domestic terrorism law.

Lisa Monaco:                So that’s it for this week, Ken. I think that’s all we’ve got time for. So we’ll be back in two weeks. In the meantime, if people have questions or comments, please send those to [email protected]

Ken Wainstein:             All right. Please send them to us and we’ll do our best to answer them on next episode, and all the best.

Lisa Monaco:                That’s it for this week’s episode of The United Security podcast. Your hosts are Lisa Monaco and Ken Wainstein. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore. And the cafe team is David Kurlander, Nat Wiener, Matthew Billy, Sam Ozer-staton, Noah Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Malley. Our music is by Alison Layton Brown. Thank you for being a part of the Cafe Insider community.